THE SUPREME COURT: THE CONTEXT; Courts Grow Increasingly Skeptical of Any Special Protections for the Press

By ADAM LIPTAK

Published: June 28, 2005

Reporters frequently maintain that they are just representatives of the public, and that any special legal protections they claim for themselves are for the good of society generally.

Courts were for a time receptive to that argument. But a pileup of recent cases and judicial decisions, including the Supreme Court's refusal yesterday to hear the cases of two reporters facing jail, suggest a new hostility, one fueled by skepticism about the very value of the institutional press.

''We're seeing outright contempt for an independent press in a free society,'' said Jane Kirtley, who teaches media ethics and law at the University of Minnesota. ''The fact that courts have no appreciation for this is new, is troubling, and you cannot overestimate the impact it will have over time.''

The courts' reluctance to grant reporters special rights may reflect a broader dissatisfaction by politicians and the public about the role the news media have come to play. The press has increasingly found itself a target of politically charged attacks, particularly from conservatives, who tend to view the mainstream media as liberal and out of touch with the concerns of many Americans. To at least some extent, the press has also wounded itself with a series of scandals that have undermined its credibility and with what many journalists acknowledge is an overreliance on confidential sources.

''We're in an era of great judicial skepticism regarding the reliability and professionalism of the media generally,'' said Rodney A. Smolla, dean of the University of Richmond School of Law, ''and that atmosphere, I think, makes courts reluctant to recognize any special First Amendment protection.''

Professor Kirtley said the legal turning point came in 2003 with a decision written by Richard A. Posner, an influential federal appeals court judge in Chicago. Judge Posner wrote that lower courts had often misread and failed to follow the holding of a 1972 Supreme Court decision, Branzburg v. Hayes, which rejected First Amendment protection for reporters facing grand jury subpoenas.

Professor Smolla said news organizations had for 30 years managed to convince lower courts that Branzburg, decided on a vote of 5 to 4, held the opposite of what its majority had decided. While the majority opinion had been fairly clear, lawyers for news organizations had seized on a brief and enigmatic concurrence by Justice Lewis F. Powell Jr. to convince the courts that they should recognize some level of protection.

That seemed to end yesterday in the Supreme Court, which upheld without comment lower court decisions ordering that Judith Miller of The New York Times and Matthew Cooper of Time magazine be jailed for refusing to testify about their sources in an investigation into the disclosure of a covert C.I.A. officer's identity.

''The media lived on borrowed time for a long time,'' Professor Smolla said, ''as very able media lawyers managed to spin a loser into a winner.'' Had the Branzburg case been decided a few years later, after a confidential source known as Deep Throat helped bring down the Nixon presidency, it might have come out differently, providing reporters at least some immunity, said Geoffrey R. Stone, a law professor at the University of Chicago.

''There was a heyday of press credibility that might have led to a different result in that era,'' Professor Stone said. ''But that was a blip.''

Since Judge Posner's decision, the floodgates have opened:

Ms. Miller and Mr. Cooper may soon be in jail.

In a separate investigation, prosecutors are seeking the phone records of Ms. Miller and a second Times reporter, Philip Shenon, in an effort to uncover their sources.

Several other reporters have been held in contempt for refusing to identify their sources in a lawsuit brought by Wen Ho Lee. Dr. Lee, a scientist at the Los Alamos National Laboratory, was suspected of espionage in 1999 but ultimately pleaded guilty to a lesser charge.

A television reporter in Rhode Island recently completed four months of home confinement for refusing to say who had given him a surveillance tape in a political corruption case.

Those cases point to a split between federal law and the laws of 49 states, which all afford substantial protection to reporters. The attorneys general of 34 states and the District of Columbia had urged the Supreme Court to address that split in the cases of Mr. Cooper and Ms. Miller.

The conflict over First Amendment protection is likely to grow more complicated, given the rising influence of the Internet.

''The federal judiciary, from the Supreme Court down, has grown very skeptical of any claim that the institutional press is deserving of First Amendment protection over and above those of ordinary citizens,'' Professor Smolla said. ''The rise of the Internet and blogger culture may have contributed to that. It makes it more difficult to draw lines between the traditional professional press and those who disseminate information from their home computers.''

Whatever the reason, said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, the press's arguments lately have been falling on deaf ears.

''Despite the Deep Throat case and other cases in which we have been able to show the value of confidential sources,'' she said, ''the courts just don't think the press is anything special.''